... it could be argued that hotlinking is not distribution or any kind of copyright violation.
I used to feel exactly the same way. But I later realized that there is another exclusive right that copyright holders are granted, the right to make derivative works, which might come into play.
If the page that is hotlinking to the image can be considered to be a derivative work of another page, or of the photo, then it could still be copyright infringement. Here is the definition of a derivative work, from 17 USC Sec. 101:
A "derivative work" is a work based upon one or more
preexisting works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any
other form in which a work may be recast, transformed, or
adapted. A work consisting of editorial revisions, annotations,
elaborations, or other modifications which, as a whole, represent
an original work of authorship, is a "derivative work".
Hotlinking to a photo could easily be considered a form of "recasting" that photo (or the original page containing the photo, which is also going to be copyrighted), and thus a derivative work.
See the definitions of recast. One that applies here is:
To set down or present (ideas, for example) in a new or different arrangement
Seems to fit.
Of course, this doesn't mean that all instances of hotlinking would be considered copyright infringement. In some instances, it could also be considered a fair use, depending on the circumstances surrounding the use.
Can you point any cases where EULAs were supported despite the argument that the action was under duress?
I have never heard of any case where such an argument was raised. I would expect a court's acceptance or rejection of such an argument to depend on the particulars of the case (e.g. was the defendant caught with his hand in the cookie jar, and now he's trying to worm his way out?)
In some ways, I respect the ProCD verdict because the result in that particular case seems just. But it is difficult to concede that consumers can be forced to enter into a contract in order to exercise their ownership rights. I don't see how that can ever be considered "voluntary". It's definitely a point of contention.
Also, it still leaves open the question of what happens if you reject the EULA? Do you need to return the software? Or should you still be allowed to use it? If the courts have decided that software is usually sold (I think the majority has), then as the owner of the software you should have the right to use it regardless of whether you agree to the EULA or not.
I wonder if you'd have more luck suing the company for intentionally failing to provide a working product than in getting out of the EULA after the fact?
Perhaps. This all may have turned out better if the defendant in ProCD hadn't been such a bad defendant. If an end-user was suing a software publisher for providing a defective product, or for interfering with the end-users' ownership rights, I think the courts would be more sympathetic to the end-user.
Another possible tactic might be to sue software companies for deceptive business practices. There's a line of cases where it was determined that software is sold, not licensed. But the software companies still claim that they are licensing the software, despite the court's finding to the contrary. Consumers should be able to take action, through the courts or FTC, arguing that these companies know the software is sold (the courts have told them so), but still claim otherwise in an attempt to mislead consumers.
With all due respect, my comment about most users not understanding these issues was not directed at anyone in particular.
Also, no one who does understand these issues could, with a straight face, say that the law is clear in this area. I don't know about other jurisdictions, but at least in the US it is not at all clear. In other words, the law hasn't been created yet. Sure the statutes are there, but until they are fully interpreted by the courts, the complete law just doesn't exist.
Furthermore, in the US courts issue opinions. Obviously their opinions carry more weight that a Slashdot post, but they are still just opinions. So there's no harm in people forming, and expressing their own (especially when the courts haven't fully expressed their own opinions yet).
Well put. I believe the vast majority of computer users, even the savvy ones, don't understand this at all. Which is why the software industry still gets away with enclosing purported "license agreements" in every box of software they sell.
Unfortunately, the majority of US courts haven't yet realized the "duress" part of your argument, even though it naturally follows when software is sold, not licensed. As a result, the majority opinion in the US is that if you agree to an EULA, it becomes binding upon you. The courts so far have viewed clicking the "I Agree" button as being voluntary, instead of as being under duress, which it actually is.
This all started because of ProCD v. Zeidenberg. The problem with that case was that the defendant obviously was acting in bad faith and doing obvious harm to the software publisher. In order to come to a conclusion that the court felt was just, they had to form the law this way (that EULAs are binding). Unfortunately, it set a very bad precedent.
Sources? On Slashdot? I think not. Especially not reliable ones.
In any case, I'll speak up in his defense because, in the USA at least, he's right-on about sales. When you purchase an item at retail, you form a contract with the retailer. The manufacturer of the product has no standing to add or modify terms of the contract for sale. In the case of software, if you buy it from a retailer, you own it. The software publisher can't, after the sale, claim that it wasn't really a sale but actually just a license.
This is especially true if the EULA says things like, "This is a contract between you and XYZ Software Corporation", "This EULA constitutes the entire contract between you and XYZ Software Corporation", and "This contract is governed by the state of California, even though you bought this software in Arizona". You'll find these types of terms in just about any EULA. All of these things quite concretely show that the EULA is NOT part of the contract for sale, but a separate contract.
In the USA, if you voluntarily agree to this second contract, it may become legally binding upon you. But there is a valid argument that the software company has no right to force you to agree to an EULA before you may use software that you rightfully own.
In the USA at least, you are correct about your "sale" argument. The UCC governs retail sales and EULAs between the manufacturer and the end-user are not part of the contract for sale between a retailer and a customer. Therefore EULAs cannot purport to change the transaction from a "sale" into a "license" just because they say so.
However, your are incorrect about the EULAs not being binding. There is a line of cases (starting with ProCD v. Zeidenberg) where EULAs have been found to be legally binding contracts. However, they appear to only be legally binding if you voluntarily assent to the terms of the EULA. What happens to your right to use software that you own if you reject the terms of the EULA is still, unfortunately, unclear in the United States.
I encourage you to visit my blog if you are interested in this topic. I think most people, even seasoned techies and geeks, don't fully understand the involved concepts (contracts, copyrights, etc) and don't realize that the software industry has been pulling the wool over end-users' eyes for decades. I'd like to see this change.
A reasoned explanation of the difference between correlation and causality is often beyond the grasp of parents who are desperate for an explanation, or better yet, somebody to sue.
Your risk assessment is a good one in my view. And this is precisely why the Institute of Medicine recommended removing thimerosal from childhood vaccinations despite no convincing evidence supporting a link with autism.
There are alternative cost-effective preservatives/methods that don't involve using thimerosal. Basically it boils down to this: Why take the risk, no matter how small, if you can eliminate it altogether at relatively no/low cost?
The best part is that you can arrive that conclusion using just plain rational though processes. No need to involve emotional biases (i.e. "think of the children!").
Unfortunately this risk management strategy has no bearing whatsoever on whether there actually is a link between autism and thimerosal. Consequently it sheds no light on what causes autism.
Most likely, there are a number of things that are causing a rise in the rate of children diagnosed with autism. What makes the anti-thimerosal camp so certain that it can be pinned down on any one thing?
Here are my top five "better suggestions":
5) Increased genetic susceptibility among the human race as a whole. 4) Increased awareness of autism spectrum disorders. 3) Better diagnostic methods. 2) Relaxed criteria for positive diagnosis.
And my #1 favorite:
1) Any of a number of synthetic chemicals children might be exposed to in increasing amounts today, rather than decreasing amounts like thimerosal.
It could be any combination of any, all, or none of the above. Chances are it's more than just one thing and, as this study suggests, thimerosal does not appear to be one of them.
... then this guy has the more compelling argument. After all, he was actually present when the box was opened, Best Buy was not.
If he says the box was full of tiles when he opened it, then Best Buy is in no position to refute that claim since they didn't insist on inspecting the box's contents when they sold it, and they weren't present when the box was opened. The fact is, Best Buy has no idea what was *really* inside the box when they sold it to the customer. As such, they have no grounds upon which to refute the customer's side of the story. If he says there were tiles in it, the court is going to have to believe him.
But it shouldn't have to go so far as small claims court since the guy bought it on Amex. They can take care of the problem for him.
The only people who could believe that the constitution is actually involved here are the same people who also want to share copyrighted material without the fear of prosecution.
You'd better let the good justices of SCOTUS know about this. They are under the mistaken impression that the issue at hand here involves the constitution, seeing as how they have ruled on similar issues on constitutional grounds in the past.
I was in Italy this summer and when I was in Portofino, they were getting ready to film a movie at Castello Brown. As I was touring the castle, I came across a little greenhouse outside and couldn't help but notice that they (the movie people, apparently) had set up a small data center inside it.
I dunno, seems like an awfully strange place to be setting up a data center.
Fair enough. Surmise away. I'm not a lawyer so I can't definitively say you are right or wrong. But that's pretty much what I thought -- you're just taking a swag at it. Which is fine. So am I. I just happen to think that you have to interpret the code more literally than that and can't just assume that "unauthorized copies" is implied when it literally says just "copies". I could be wrong.
Um, I don't see where it says that anywhere in the above quoted paragraph from The Code. Part three (the emphasized part) mentions nothing about "unauthorized copies". It just says copies. Are you just surmising that it implies "unauthorized copies"? Or can you cite any other section of The Code that clarifies it?
The problem is, and the reason this happened is, that these outrageous fines have been codified in U.S. copyright law. The law flat-out states that the minimum fine is $750 per work (in this case, song) and the maximum is $150,000.
Furthermore, this law does not require that any actual damages be taken into account before deciding what amount will be fined. Under U.S. law, this is unconstitutional. The U.S. Supreme Court has decided in the past that damage awards must usually be in a ratio of no more than 4:1 of actual damages. Further, they have said that damage awards in excess of 10:1 will almost certainly always be considered unconstitutional.
So, this law is probably unconstitutional, but the jury in this case was not asked to make that determination. They went on the assumption that the law is good and can stand as written. (Actually, juries may never make this determination, only judges rule on questions of constitutionality).
I am of the expectation, and the hope, that when this case is appealed, the part of the law that authorizes these insane fines will be challenged and found unconstitutional.
BTW, What I stated above is my understanding of the system here in the U.S. but I am not a lawyer so you may need to take the above with a grain of salt.
Depends on your point of view of this case (Capitol v. Thomas). Personally, I believe that she is probably guilty of infringement. Seems that many reasonable people could come to that conclusion.
However, the fine that has been handed down is absolutely ridiculous. "Sorry ma'am, you helped other people steal a couple of songs so now we're going to take your house." Does that sound just? It doesn't sound just to me. It's not justice for the same reason that "Your son stole a pack of chewing gum, so we're going to have to execute him" isn't just: the punishment isn't proportionate to the damage done.
Funny thing about this case, they didn't even need to show that any damage *was* done.
If all that isn't reason enough to support the defense on this case, then you would have to be a pretty cruel individual, IMHO.
This being a civil matter, they can only sue for money, something a bankrupt person does not have to pay.
Not exactly. I was perusing the copyright statutes the other day, trying to find out if copyright violations are civil or criminal matters. Most of the time, they are civil. But it turns out that copyright infringement on a massive scale (i.e. long duration, shown to be willful, etc) becomes criminal.
I'm not an expert on the subject so I don't know where they draw the line precisely, but I have an inkling that, were she to do as you suggested, she would be held criminally liable.
Slashdot Mirror
Remember kids, these congress critters are the people that you and I, our familes, friends, and neighbors all elected.
Unless you don't vote. In that case, feel free to bitch-slap the rest of us.
LOL. You're right, I should have known better than to use the acronym in a thread titled "Extreme mooning".
Everytime I see someone say that now, I'll probably think of goatse.cx
That was definitely a very educational thread. MSFT's unwillingness to elaborate on their legal theories as to how EULAs are valid speaks volumes.
If the page that is hotlinking to the image can be considered to be a derivative work of another page, or of the photo, then it could still be copyright infringement. Here is the definition of a derivative work, from 17 USC Sec. 101:
Hotlinking to a photo could easily be considered a form of "recasting" that photo (or the original page containing the photo, which is also going to be copyrighted), and thus a derivative work.
See the definitions of recast. One that applies here is:Seems to fit.
Of course, this doesn't mean that all instances of hotlinking would be considered copyright infringement. In some instances, it could also be considered a fair use, depending on the circumstances surrounding the use.
In some ways, I respect the ProCD verdict because the result in that particular case seems just. But it is difficult to concede that consumers can be forced to enter into a contract in order to exercise their ownership rights. I don't see how that can ever be considered "voluntary". It's definitely a point of contention.
Also, it still leaves open the question of what happens if you reject the EULA? Do you need to return the software? Or should you still be allowed to use it? If the courts have decided that software is usually sold (I think the majority has), then as the owner of the software you should have the right to use it regardless of whether you agree to the EULA or not.Perhaps. This all may have turned out better if the defendant in ProCD hadn't been such a bad defendant. If an end-user was suing a software publisher for providing a defective product, or for interfering with the end-users' ownership rights, I think the courts would be more sympathetic to the end-user.
Another possible tactic might be to sue software companies for deceptive business practices. There's a line of cases where it was determined that software is sold, not licensed. But the software companies still claim that they are licensing the software, despite the court's finding to the contrary. Consumers should be able to take action, through the courts or FTC, arguing that these companies know the software is sold (the courts have told them so), but still claim otherwise in an attempt to mislead consumers.
I wish the EFF would take on such a case.
With all due respect, my comment about most users not understanding these issues was not directed at anyone in particular.
Also, no one who does understand these issues could, with a straight face, say that the law is clear in this area. I don't know about other jurisdictions, but at least in the US it is not at all clear. In other words, the law hasn't been created yet. Sure the statutes are there, but until they are fully interpreted by the courts, the complete law just doesn't exist.
Furthermore, in the US courts issue opinions. Obviously their opinions carry more weight that a Slashdot post, but they are still just opinions. So there's no harm in people forming, and expressing their own (especially when the courts haven't fully expressed their own opinions yet).
Well put. I believe the vast majority of computer users, even the savvy ones, don't understand this at all. Which is why the software industry still gets away with enclosing purported "license agreements" in every box of software they sell.
Unfortunately, the majority of US courts haven't yet realized the "duress" part of your argument, even though it naturally follows when software is sold, not licensed. As a result, the majority opinion in the US is that if you agree to an EULA, it becomes binding upon you. The courts so far have viewed clicking the "I Agree" button as being voluntary, instead of as being under duress, which it actually is.
This all started because of ProCD v. Zeidenberg. The problem with that case was that the defendant obviously was acting in bad faith and doing obvious harm to the software publisher. In order to come to a conclusion that the court felt was just, they had to form the law this way (that EULAs are binding). Unfortunately, it set a very bad precedent.
Sources? On Slashdot? I think not. Especially not reliable ones.
In any case, I'll speak up in his defense because, in the USA at least, he's right-on about sales. When you purchase an item at retail, you form a contract with the retailer. The manufacturer of the product has no standing to add or modify terms of the contract for sale. In the case of software, if you buy it from a retailer, you own it. The software publisher can't, after the sale, claim that it wasn't really a sale but actually just a license.
This is especially true if the EULA says things like, "This is a contract between you and XYZ Software Corporation", "This EULA constitutes the entire contract between you and XYZ Software Corporation", and "This contract is governed by the state of California, even though you bought this software in Arizona". You'll find these types of terms in just about any EULA. All of these things quite concretely show that the EULA is NOT part of the contract for sale, but a separate contract.
In the USA, if you voluntarily agree to this second contract, it may become legally binding upon you. But there is a valid argument that the software company has no right to force you to agree to an EULA before you may use software that you rightfully own.
In the USA at least, you are correct about your "sale" argument. The UCC governs retail sales and EULAs between the manufacturer and the end-user are not part of the contract for sale between a retailer and a customer. Therefore EULAs cannot purport to change the transaction from a "sale" into a "license" just because they say so.
However, your are incorrect about the EULAs not being binding. There is a line of cases (starting with ProCD v. Zeidenberg) where EULAs have been found to be legally binding contracts. However, they appear to only be legally binding if you voluntarily assent to the terms of the EULA. What happens to your right to use software that you own if you reject the terms of the EULA is still, unfortunately, unclear in the United States.
I encourage you to visit my blog if you are interested in this topic. I think most people, even seasoned techies and geeks, don't fully understand the involved concepts (contracts, copyrights, etc) and don't realize that the software industry has been pulling the wool over end-users' eyes for decades. I'd like to see this change.
Good thing you posted as an AC. That was enough flame-bait to burn down an entire rain-forest of good karma.
Ice cream, Mandrake, children's ice cream!
Your risk assessment is a good one in my view. And this is precisely why the Institute of Medicine recommended removing thimerosal from childhood vaccinations despite no convincing evidence supporting a link with autism.
There are alternative cost-effective preservatives/methods that don't involve using thimerosal. Basically it boils down to this: Why take the risk, no matter how small, if you can eliminate it altogether at relatively no/low cost?
The best part is that you can arrive that conclusion using just plain rational though processes. No need to involve emotional biases (i.e. "think of the children!").
Unfortunately this risk management strategy has no bearing whatsoever on whether there actually is a link between autism and thimerosal. Consequently it sheds no light on what causes autism.
Most likely, there are a number of things that are causing a rise in the rate of children diagnosed with autism. What makes the anti-thimerosal camp so certain that it can be pinned down on any one thing?
Here are my top five "better suggestions":
5) Increased genetic susceptibility among the human race as a whole.
4) Increased awareness of autism spectrum disorders.
3) Better diagnostic methods.
2) Relaxed criteria for positive diagnosis.
And my #1 favorite:
1) Any of a number of synthetic chemicals children might be exposed to in increasing amounts today, rather than decreasing amounts like thimerosal.
It could be any combination of any, all, or none of the above. Chances are it's more than just one thing and, as this study suggests, thimerosal does not appear to be one of them.
... that Germans love David Hasselhof.
... then this guy has the more compelling argument. After all, he was actually present when the box was opened, Best Buy was not.
If he says the box was full of tiles when he opened it, then Best Buy is in no position to refute that claim since they didn't insist on inspecting the box's contents when they sold it, and they weren't present when the box was opened. The fact is, Best Buy has no idea what was *really* inside the box when they sold it to the customer. As such, they have no grounds upon which to refute the customer's side of the story. If he says there were tiles in it, the court is going to have to believe him.
But it shouldn't have to go so far as small claims court since the guy bought it on Amex. They can take care of the problem for him.
When will someone finally put this guy in a straitjacket and thrown him in a rubber room? He's just plain wacko.
Unless they're all just a bunch of pirates?
I was in Italy this summer and when I was in Portofino, they were getting ready to film a movie at Castello Brown. As I was touring the castle, I came across a little greenhouse outside and couldn't help but notice that they (the movie people, apparently) had set up a small data center inside it.
I dunno, seems like an awfully strange place to be setting up a data center.
Fair enough. Surmise away. I'm not a lawyer so I can't definitively say you are right or wrong. But that's pretty much what I thought -- you're just taking a swag at it. Which is fine. So am I. I just happen to think that you have to interpret the code more literally than that and can't just assume that "unauthorized copies" is implied when it literally says just "copies". I could be wrong.
Um, I don't see where it says that anywhere in the above quoted paragraph from The Code. Part three (the emphasized part) mentions nothing about "unauthorized copies". It just says copies. Are you just surmising that it implies "unauthorized copies"? Or can you cite any other section of The Code that clarifies it?
You are right, it is absolutely crazy.
The problem is, and the reason this happened is, that these outrageous fines have been codified in U.S. copyright law. The law flat-out states that the minimum fine is $750 per work (in this case, song) and the maximum is $150,000.
Furthermore, this law does not require that any actual damages be taken into account before deciding what amount will be fined. Under U.S. law, this is unconstitutional. The U.S. Supreme Court has decided in the past that damage awards must usually be in a ratio of no more than 4:1 of actual damages. Further, they have said that damage awards in excess of 10:1 will almost certainly always be considered unconstitutional.
So, this law is probably unconstitutional, but the jury in this case was not asked to make that determination. They went on the assumption that the law is good and can stand as written. (Actually, juries may never make this determination, only judges rule on questions of constitutionality).
I am of the expectation, and the hope, that when this case is appealed, the part of the law that authorizes these insane fines will be challenged and found unconstitutional.
BTW, What I stated above is my understanding of the system here in the U.S. but I am not a lawyer so you may need to take the above with a grain of salt.
Depends on your point of view of this case (Capitol v. Thomas). Personally, I believe that she is probably guilty of infringement. Seems that many reasonable people could come to that conclusion.
However, the fine that has been handed down is absolutely ridiculous. "Sorry ma'am, you helped other people steal a couple of songs so now we're going to take your house." Does that sound just? It doesn't sound just to me. It's not justice for the same reason that "Your son stole a pack of chewing gum, so we're going to have to execute him" isn't just: the punishment isn't proportionate to the damage done.
Funny thing about this case, they didn't even need to show that any damage *was* done.
If all that isn't reason enough to support the defense on this case, then you would have to be a pretty cruel individual, IMHO.
I'm not an expert on the subject so I don't know where they draw the line precisely, but I have an inkling that, were she to do as you suggested, she would be held criminally liable.